Opinion
22847.
ARGUED FEBRUARY 9, 1965.
DECIDED MARCH 8, 1965.
Equitable petition. Fulton Superior Court. Before Judge Pharr.
M. H. Blackshear, for plaintiff in error.
Moreton Rolleston, Jr., contra.
The judgment sustaining the plea of the defendant was erroneous.
ARGUED FEBRUARY 9, 1965 — DECIDED MARCH 8, 1965.
This is the second case in this court arising by reason of a transfer of assets by Car-Perk Services, Inc., to its president. In the first case the petition of Car-Perk Services, Inc., as amended, against James C. Carr, alleged: While the defendant was president of the plaintiff corporation it transferred to him assets consisting of two businesses, Rainbow Laundry and City Linen Service, together with described physical assets. The transfers of the businesses and assets were made for the sole purpose of enabling the defendant to hold and operate the businesses for the corporation and to enable the defendant to obtain a bank loan, which the businesses then required, the loan to be repaid from future earnings. The defendant, after having received the transfers from the corporation under such agreement, now claims to own the businesses individually, and refuses to return them to the corporation. The plaintiff prayed that the court decree the assets of the businesses held by the defendant to be impressed with a trust in favor of the plaintiff, and that the court compel a reconveyance by the defendant. The defendant contended that he had purchased the two businesses. The jury returned a verdict for the defendant and this court affirmed. For a full statement of the facts and issues in the former litigation, see Car-Perk Services, Inc. v. Carr, 219 Ga. 322 ( 132 S.E.2d 780).
In the present case Stoddard Cleaners, Inc., brought an action to recover from James C. Carr indebtedness of City Linen Service and Rainbow Laundry, the two businesses previously transferred by Car-Perk to Carr. It was alleged that a part of the consideration for the conveyance of the two business by Car-Perk to Carr was the agreement of Carr to pay the debts owed by the two businesses to creditors, and that Carr has failed and refused to pay the plaintiff the debts of the two businesses conveyed to him, and has denied any obligation for the debts. The plaintiff prayed for judgment upon its debts and a special lien upon the assets of Rainbow Laundry and City Linen Service.
The defendant's general demurrers to the petition were overruled. The defendant filed a plea setting out the former litigation ( Car-Perk Services, Inc. v. Carr, 219 Ga. 322, supra), and contending that: "The judgment in the previous case between these parties is binding on these parties as to all of the issues raised in the instant case." The plaintiff made an oral motion to strike this plea of the defendant, and this motion was overruled.
Thereafter the trial judge sustained the plea, and held that the plaintiff was barred from bringing the present action. The judge wrote an opinion overruling the defendant's general demurrers and sustaining the plea of the defendant. In the opinion sustaining the plea it is stated in part as follows: "It is the court's understanding that defendant contends that petitioner is a privy of Car-Perk Services, Inc. and is therefore concluded by the judgment in the case between Car-Perk and defendant for the reason that Car-Perk Services, Inc. could have asserted in that action that the contract between it and defendant required defendant to pay the debt to the present petitioner who is alleged to be a creditor of Car-Perk. From reading the case in 219 Ga. 322 it appears clear that Car-Perk Services could have asserted and litigated in that action the present contentions of petitioner. Therefore, the question is whether or not petitioner is precluded from now litigating that issue."
The plaintiff excepted to the order denying its motion to dismiss the defendant's plea, and to the judgment sustaining the plea, and assigned error on these rulings.
In Car-Perk Services, Inc. v. Carr, 219 Ga. 322, supra, at page 325, it is stated: "Carr testified that there was absolutely no agreement that he reconvey the property; that the consideration of the sale to him was his assumption of the debts, agreement to pay them off and the note which he signed." Under the defendant's testimony he agreed to pay the debts of the two companies acquired by him from Car-Perk and due to the plaintiff in the present action. The sole issue for determination by this court is whether the judgment in Car-Perk Services, Inc. v. Carr, 219 Ga. 322, supra, precludes the present action by Stoddard.
"A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code § 110-501. The issue as to the liability of Carr for the debts of City Linen Service and Rainbow Laundry to Stoddard was not litigated in the former case. The question is, could it have been properly included in the former litigation?
In the former litigation, Car-Perk Services, Inc., in an equitable action sought to have the court decree that the assets of the two businesses held by James C. Carr were impressed with a trust and prayed that the court compel a reconveyance to the plaintiff. In the present case Stoddard seeks to recover from Carr certain obligations which Carr admittedly assumed in acquiring the two businesses, City Linen Service and Rainbow Laundry. Thus it appears that the respective claims of Car-Perk Services, Inc., and Stoddard against Carr are separate and distinct, and the relief sought by each litigant is wholly different in character. This being true, Car-Perk Services, Inc., could not have included in its action against Carr the claim of Stoddard, either in the same count or in separate counts.
Code § 3-110 provides: "Distinct and separate claims of or against different persons shall not be joined in the same action. Where the damage as well as the interest is several, each party injured shall sue separately." To have joined the claims of Car-Perk Services and Stoddard against Carr would have been a joinder of inconsistent theories as to the right of recovery and would have rendered the petition subject to dismissal on the ground of duplicity. Orr v. Cooledge, 117 Ga. 195 (3) ( 43 S.E. 527); Hartley v. Hartley, 198 Ga. 294 (1) ( 31 S.E.2d 655); Glynn Lumber Co. v. McCann, 201 Ga. 354 ( 40 S.E.2d 139).
Car-Perk Services, Inc., could not have included two wholly separate and distinct contentions as to a right of recovery by separate and distinct persons in its petition without rendering such petition subject to demurrer, there being no connected interest common to both plaintiffs. Blaisdell v. Bohr, 68 Ga. 56; City Bank of Macon v. Bartlett, 71 Ga. 797; Richardson v. Adams, 99 Ga. 81 ( 24 S.E. 849); Van Dyke v. Van Dyke, 120 Ga. 984 ( 48 S.E. 380); Georgia Railroad Banking Co. v. Tice, 124 Ga. 459 ( 52 S.E. 916, 4 AC 200); White v. North Georgia Elec. Co., 128 Ga. 539 ( 58 S.E. 33); Miller v. Jones, 136 Ga. 428, 435 ( 71 S.E. 910); Sanders v. Wilson, 193 Ga. 393 ( 18 S.E.2d 765); Lyle v. Keehn, 195 Ga. 508 ( 24 S.E.2d 655).
The trial judge erred in holding that the claim of Stoddard could have been included by Car-Perk Services, Inc., in its action against Carr.
Judgment reversed. All the Justices concur.